JUDGMENT :

1. The victim girl, aged six years, complained of the sexual assault upon her by the appellant, who is residing in the neighborhood. She narrated the same to her aunt (PW 1) when she suffered pain in her genitals. On being taken to a clinic near the house, the Doctor examined her and informed that it was a case of sexual abuse. At that time, the girl disclosed that that on the pretext of giving her ice-cream, she was taken to his house and made to lie on the floor and he tried to insert his penis in her vagina and also gave his penis in her mouth. He slept over her, kissed her and moved himself back and forth over her body. She was also threatened that if she narrate the incident to anyone, he would asked her father to beat her.

2. The aforesaid sequence of events resulted in lodging of a complaint by PW 1, the aunt of the victim girl who reported that on 16/2/2018, the victim along with her other family members visited her house and she accompanied them to Panvel. In the night of 17/2/2018, the niece told her that she is having excruciating pain in her private part and therefore, she applied oil. On the next day night, she again complained of the same, but somehow by convincing her, she made her sleep, and on 19/2/2018, she was taken to the Doctor, who expressed that she has been sexually abused and asked them to report to the police station. On inquiry, the victim gave her version, which was set out in complaint which was exhibited through PW 1. PW 1, who stepped into the witness box, reiterated the sequence of events and also the narration of the victim when she was inquired about the incident.

3. The statement of the victim girl was recorded on 9/3/2018 before the Magistrate, 52nd Court, Kurla, Mumbai, and she categorically stated that she had been to the house of the accused on 6th floor, since he assured to give her ice-cream, which he did not give, but he touched his private organ, removed the knicker, kissed her and put his penis in her mouth. The victim came to be examined as PW 2, who disclosed that at the time of recording her evidence, she was aged 6 years. The learned judge arrived at a conclusion that she is capable of having sufficient understanding and administered oath. On being examined in-camera, she deposed that her uncle and aunt reside on 6th floor and the person whom she referred to as ‘Bhaiyya’ also reside on 6th floor. She also disclosed his name and further stated that he told her he would give ice-cream and play ‘Nangu Pangu’. Thereafter, she described the incident as under :-

“His name is Banarasi Gupta. He said to me that he will give me ice-cream. He did not give. He told that we will play ‘Nangu Pangu’. He removed my clothes and asked me to lie on his body. He asked me to take his penis in my mouth. He said that he will urinate and I should touch. I have not gone to any other court. I have narrated the incident to my aunt Ranjana and her husband”

4. The prosecution also examined the Doctor as PW 5, who had medically examined the victim after obtaining consent of her aunt (PW 1). She noted he history narrated by the aunt of the victim and the circumstances in which she was brought for medical examination.

On examination, she made notings in the proforma of medical examination report of alleged victim of rape/sexual assault which was exhibited at Exhibit-24. PW 5 deposed that on local examination of genitals, she found the hymen to be intact, but there was presence of redness and based on this, she opined that sexual intercourse/assault cannot be ruled out.

In cross-examination, PW 5 specifically stated that victim was examined four days after the incident and also admitted that redness can be possible due to rubbing on private part and as per history, oil was applied on the urethra of the victim.

5. In Exhibit-24, there is a reference of history stated by the aunt of the victim and also narration of history by the victim herself. In the history given by aunt i.e. PW 1, it is the reiteration of